Police and Justice Bill - Standing Committee D

[Mr. Greg Pope in the Chair]

Police and Justice Bill

Schedule 12 - Extradition

Amendment proposed [this day]: No. 150, in schedule 12, page 110, line 11, at end insert—
‘“(j)forum”.’.—[Nick Herbert.]

Question again proposed, That the amendment be made.

Greg Pope: I remind the Committee that with this we are taking the following amendments: No. 151, in schedule 12, page 110, line 13, leave out ‘19A’ and insert ‘19B’.
No. 152, in schedule 12, page 110, line 31, at end insert—
‘19BForum
If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears, in the light of all the circumstances, that it would be in the interests of justice that the person should be tried in the category 1 territory.’.
No. 155, in schedule 12, page 115, line 18, at end insert—
‘Bars to extradition
6ASection 79 (bars to extradition) is amended as follows—
(a)after subsection (1)(d) there is inserted—
“(e)forum”; and
(b)in subsection (2) leave out “83” and insert “83A”.’.
No. 156, in schedule 12, page 115, line 18, at end insert—
‘Forum
6BAfter section 83 there is inserted—
“83AForum
If the conduct constituting the offence was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears, in the light of all the circumstances, that it would be in the interest of justice that the person should be tried in the category 2 territory”.’.

James Brokenshire: I was midway through responding to an intervention from my hon. Friend the Member for Lichfield (Michael Fabricant) about assurances that can be relied on and the historical context of the extradition treaty between the United States and the United Kingdom. I was making the point to that the treaty seems to have been agreed on the basis of an assurance falling short of the standard of some legally enforceable or binding agreement. I emphasise that it is surprising that when the obligations that have been brought to bear on this country were introduced here they were not expressed  to be conditional on the adoption and implementation in US law of their side of the treaty and the resulting obligations.
We have been debating the anomaly—that is the best way of describing it—that if we seek to extradite someone from the US we need to show a prima facie case or basic justification sufficient for committal to trial, but the US has only to provide a statement of the facts. That reflects the introduction of EU legislation and although I did not fully agree with the approach that was taken, on the EU side there is at least the protection of the European Court of Human Rights. However, as we heard this morning, the US does not have that protection and there is no overarching protection in a case of miscarriage of human rights or justification.
I want to be entirely clear: in supporting the amendment, I am not saying that we should not ensure that criminals are prosecuted. If someone has broken the law, they should be dealt with appropriately. The amendment is not intended to protect people who have carried out illegal acts. The issue is the interrelationship on matters of law between this country and the US and the fact that the extradition procedure goes much wider than was anticipated. It was introduced at a time of heightened concern about terrorism and the need to ensure that terrorist suspects were dealt with efficiently and effectively. However, the ambit of the legislation goes much wider, and although there may be a concept of dual criminality—under the treaty the offences in question must be punishable on both sides by a minimum custodial sentence of one year or more—the issue arises of the various standards that might apply in each jurisdiction.
The Minister has alluded to the fact that this is not a perfect world and while we may seek an equitable approach, there will be differences of jurisprudence between different jurisdictions. Two offences may be common between, for example, the US and the UK but the standards of proof and the evidential burden will differ from country to country. For example, hearsay evidence might be admissible in one state or territory, but not admissible in relation to the offence in this country, yet extradition could be justified because the statute books of both countries provides for a custodial sentence of one year or more in relation to the overarching offence. There will be differences, but it seems strange that when we on this side of the Atlantic seek an extradition, we need to show a prima facie case when that would not be necessary on the other side.
It is interesting that in her winding-up speech on Second Reading, the Minister for Policing, Security and Community Safety said:
“We have probably got the best balance that we can get in the treaty”.—[Official Report, 6 March 2006; Vol. 443, c. 689.]
I question that. Previously, there was a common approach between the two sides. Under the old treaty, a requesting state seeking extradition needed to provide evidence that would be sufficient, according to the laws of the requested state, to justify committal for  trial. In many ways, that underscored the prima facie evidence test—both sides had to show that there was sufficient evidence to justify a committal for trial.
The Minister acknowledged that there is a difference between the tests in terms of probable cause or information. I reiterate that it is strange that we have moved from a situation in which similar approaches and tests were used by the US and the UK to one in which that approach appears to have been dropped by us without any reciprocity. If the Minister still asserts that we have got the balance right, I would be interested to know what is on the plus scorecard for us. What did we gain from agreeing to an approach in which there is no level playing field and, apparently, it is easier to extradite people from this country than for us to extradite people from the US? If there is some overwhelming and persuasive case to justify that, I would like to hear it.
The intention behind the amendments proposed by my hon. Friend the Member for Arundel and South Downs (Nick Herbert) is to remedy the present situation, which could have been avoided. The situation has provoked strong feelings from certain groups. On Second Reading, my hon. Friend the Member for Henley (Mr. Johnson) used emotive language, and talked about people being hoovered up—as he so eloquently put it—from the US.

Stephen Pound: J. Edgar Hoover?

James Brokenshire: I think that my hon. Friend was referring more to the generic hoover variety, rather than anything presidential. He talked about people being sucked over from the US.
Liberty has been stringent and strong in its criticism from the human rights angle. Shami Chakrabarti said:
“The Extradition Act 2003 is a breathtaking example of a sovereign government trading away the rights and freedoms of its citizens as a political gesture for a foreign power. Human beings are to be sent across the world like sacks of carrots, away from family and friends, to be detained for long periods pending trial. There is no need to show even a prima facie case to a UK court. If we are wrong that this is a violation of fundamental rights, why will the US Government not allow similar traffic for its own citizens in the other direction?”
I would not use such emotive language as Ms Chakrabarti, but there are clearly fundamental concerns. Her last point about the US not allowing similar traffic underpins the argument and illustrates the anomaly in the positions on each side of the Atlantic.
What statement of facts should the US Government provide when seeking extradition? I understand that the statement of facts is not a list of evidential information but almost a list of allegations against an individual. That will not necessarily fulfil the test or provide the robustness that one might hope for with a check to ensure that the power is being used properly.
In terms of jurisprudence and legality, the United States is known for its extra-territorial approach to its legislative framework. That is the way in which it adopts its law, and I make no comment on or criticism of the way in which its jurisprudence has grown up. Clearly, that extra-territorial approach gives scope for  wide interpretation and the ability to use the legislation more widely than might be the case in other jurisdictions. The amendments that my hon. Friend the Member for Arundel and South Downs proposes raise the issue of where the most appropriate forum to deal with such matters might be and underscores the need to ensure that the most appropriate forum is used.

Michael Fabricant: On that point, nobody has raised the question of cost. Whereas United States companies might have insurance against litigation within the United States—which is more expensive than that in the United Kingdom—British companies might not have such insurance or, if they do, it does not cover the excessive costs in the United States. While the jurisprudence in the continental United States is largely the same as that of the United Kingdom, might the provisions not be damaging to companies that suddenly find their senior executives being sent to the United States for trial?

James Brokenshire: My hon. Friend raises an important point. An obvious example would be the Sarbanes-Oxley provisions: the compliance requirements of that legislation impose about $100 million of additional costs on US companies, whereas, although Sarbanes-Oxley has applies to companies outside America, the approach is not so rigorous. But if it were felt that that might be the case in respect of quoted companies in this country, insurance premiums for directors’ and officers’ liability would be an issue.
That issue underlines the CBI’s concern about the status of the City of London as a financial market. There has to be clarity about the laws and regulations that would operate. Given the extra-territorial approach of US jurisprudence, I can understand that concern. Although it was clearly not the Government’s intention, in making these changes to the Extradition Act 2003—

Michael Fabricant: I mentioned the corporate example. Is it not even more worrying that individuals might not have access to the same quality of defence in certain states of the United States that they would have in the United Kingdom? It might not be available.

James Brokenshire: One of the arguments that has been put on that point is that if offences that might be triable in either jurisdiction have taken place in this country, or at least outside the United States, there would be a form of imbalance, and it would be more difficult to defend against the allegations. The evidence would be outside the US and one’s access to it would be limited, particularly if one were in custody in the US and had a limited ability to mount a defence.
We need to get a balance. If somebody is being tried for a serious offence, that needs to be dealt with appropriately. The amendment is not some sort of charter to provide protection for people who have committed criminal offences; it is a matter of balance, and of ensuring that allegations are investigated and dealt with properly and in the right forum, under the right jurisdiction for the case. Given the anomalous  position in respect the evidence that needs to be provided with an extradition request, the emphasis of the amendment proposed by my hon. Friend the Member for Arundel and South Downs is that, in the interests of a fair trial and so that justice is seen to be done, the matter should be disposed of in the United Kingdom rather than in another jurisdiction. If a crime is committed in this country, the most appropriate way to dispose of that crime is in this country, so that justice is seen to be done. That will act as a disincentive to others and will show that the justice system can deal with those issues in the United Kingdom.
That clearly highlights a number of serious and significant issues. The Minister is urging us to press the US to implement its side of the treaty so that our relationship is brought back into balance. However, my understanding is that that is not likely to happen—certainly not in the near term—and we may need some form of new treaty. That will take a very long time. However, this Committee has the opportunity to address the issue through amendments to our extradition provisions, so I support the amendments. They give us an opportunity to highlight our concerns and emphasise the need for something to be done about them, so that we can get clarity and certainty about the import and effect of the provisions.
Through the mechanism of the amendments, we can bring about a situation that the Government want: we can achieve a balance between the two sides. If that cannot be achieved from the US side through its adoption of the treaty, it can be done through amendments to the Extradition Act 2003. That is what is before us, and I encourage all Committee members to look seriously and earnestly at my hon. Friend’s amendments, as they seek to remedy the anomaly recognised by all parties present. Making the amendments is in the interests of fairness, justice and ensuring that people are brought to book for their crimes; through them, we can restore the balance that existed between the US and the UK before the treaty was half brought into effect.

Lynne Featherstone: You will be relieved to know that I will be brief, Mr. Pope. I have listened to the extensive and well put arguments, and to me the situation is patently unfair and unequal. Here we have an opportunity to rectify the problem. Will the Government take this opportunity to correct the imbalance? If not, how do they intend to address the problem? Or are they content with the situation?

Hazel Blears: Welcome to the afternoon sitting, Mr. Pope. You were not present this morning, when we had good-tempered and consensual discussion of some amendments. This afternoon, I hope to persuade hon. Members from all parties that there are a number of misconceptions about the position on extradition. Obviously, I listened with  interest to Members’ contributions, but I would really hate the Committee to consider the amendments without it being apprised of the true situation, so I shall make a few general preliminary remarks before I return to the amendments. That might be helpful.
First of all, when we carry out extradition, we deal with countries broadly in three main categories. The first category has to do with our relationships with other European Union states. These days, that is very much a judge-to-judge procedure; there is very little involvement of Governments and the process is very much a judicial one. In relation to those 24 states that are in part 1, very little evidence is required at all. All that is needed is details of the offence—the statement of facts to which the hon. Member for Hornchurch (James Brokenshire) referred. That applies to countries as varied as Greece, France, Germany, Italy, Latvia, and Lithuania. So there is a precedent for having a very straightforward relationship. That situation, which has developed over time, has arisen because we have very close relationships with those countries. The decision not to insist on prima facie evidence for European Union states was taken by a Conservative Government in 1991, so the precedent for moving away from prima facie evidence was set as long ago as that. It is an established legal fact.
The second category relates to non-European Union countries and some Commonwealth countries. They are categorised under level 2a. From those countries, we require information that is sufficient to enable us to issue an arrest warrant, which is much more than a statement of facts. Those countries include the United States of America, as well as Canada, Australia, New Zealand and a whole range of different countries. I am intrigued why all our debate has been about the relationship between the United Kingdom and the United States of America, yet not one person has expressed the same worry, outrage or horror at the possibility of citizens being extradited to Canada, Australia or New Zealand when exactly the same test that applies to those jurisdictions applies to the relationship between the United Kingdom and the United States of America.
The hon. Member for Arundel and South Downs was pressed on that point by my hon. Friend the Member for Stoke-on-Trent, South (Mr. Flello), who asked whether the hon. Gentleman’s real concern was based on a lack of faith in the American justice system. In the absence of his expressing similar concern about Australia, New Zealand and Canada, I fail to see any other logical inference that can be drawn. I have been subjected to many probing amendments during our proceedings, so I should like to probe the hon. Gentleman a little. If his real worry is that some countries are required only to provide information sufficient to enable an arrest warrant to be issued, why does he not have the same worries about Australia, New Zealand and Canada?

Michael Fabricant: Are there not two issues. The first is the perceived—no, not perceived, the actual imbalance between the United Kingdom and the United States, which does not exist between the United Kingdom and Canada, the United Kingdom and  Australia, or the United Kingdom and New Zealand? I am wearing my stars and stripes tie, so I am not attacking the United States. Secondly, let us be honest: no one would doubt the jurisprudence system within the continental United States, but it is because of that robust system that it has to have an extra-territorial camp at Guantanamo Bay. Those two issues do not apply to our relationship and treaties with Canada, Australia and New Zealand.

Hazel Blears: Here we have it. I am grateful that I have probed. The hon. Gentleman is viewing such issues through the prism of Guantanamo Bay rather than mainstream extradition policy. I did not even understand his first point. He glided over variations in levels of proof and information. The matter is serious. We have had an hour of concern being expressed by Opposition Members about the United States and have heard questions about why it demands that we show probable cause and why we have to demand information sufficient to issue an arrest warrant. They have argued that there is an imbalance, which means that we have sold our citizens down the river, and that the proposal is just an excuse for us to support American foreign policy. All those issues have been raised. If they are matters of genuine concern that have an intellectual basis, I should have expected Opposition Members to voice precisely the same worries about the other legal jurisdictions in Australia, New Zealand and Canada. I have not heard a word about that in this Committee.

Mark Pritchard: Is the Minister saying that we should have concerns about those other jurisdictions?

Hazel Blears: I am certainly not. I shall come on to the balance of evidence, but my point has now been clearly established. I shall leave the issue there.

Michael Fabricant: On a point of order, Mr. Pope. The Minister may have misheard my earlier question because she did not answer it. I said that there was imbalance between our relationship with the United States. The past hour’s debate has been about that imbalance, not Guantanamo Bay.

Greg Pope: Such matters are for debate, not for the Chair.

Hazel Blears: Thank you, Mr. Pope. I shall come to the question of balance. My point about the other jurisdictions to which the hon. Member for Arundel and South Downs has not responded was that they also now face a requirement to show sufficient information to enable us to issue an arrest warrant. We have changed our position in relation to those countries in exactly the same way that we have changed our position in relation to the United States of America, and I hear no concern about those jurisdictions. Therefore I must conclude, if hon. Members do not tell me otherwise, that they are concerned about the ability of the United States’ legal system to give people a fair trial when they pitch up in America on extradition. If that is so, we are saying that  we do not trust a modern democracy with a robust legal system. If that is the position of the Conservative party we are entitled to know.

James Brokenshire: I am interested in the Minister’s line of argument, but the amendments tabled by my hon. Friend the Member for Arundel and South Downs are not US-specific. They cover the whole principle. There is an issue that is relevant to all countries. Does the Minister agree that my hon. Friend’s amendments are not US-specific and that they relate to all countries? They would restore a balance with respect to whatever country might be relevant.

Hazel Blears: I will come to the detail of the amendments. It was important for us to explore the matter. I am sure that when we read the record, we shall see that nearly 100 per cent. of the debate has been about America, and not about anywhere else.
I shall come to the evidential points, but I want to emphasise that a series of safeguards exist on extradition, of which I am sure hon. Members will be aware. Judges must take into account a range of considerations before granting extradition, besides the evidential points. Identity is an issue. Extradition does not take place unless the judge is absolutely satisfied—on the balance of probabilities—that the person before him is the person sought.
Dual criminality is very important. Extradition is barred if dual criminality is not established. What is alleged must be an offence in both jurisdictions. The hon. Member for Hornchurch spoke at length about some of those issues. There is a lot of detail. Unless the offence has retrospective application, it must have been an offence in both states at the time of the conduct in question. If the person whose extradition is requested has already been convicted of the relevant offence, a sentence of at least four months for the extradition offence must have been imposed.
The issues concerning dual criminality provide a series of safeguards for people who are the subject of extradition requests. The requests must be made in good faith. There must not be double jeopardy. Ill health and the passage of time are all matters that the judge can take into account when he or she considers the extradition request. If those matters cause concern, the request can be discharged. Extradition requests have been discharged on human rights grounds and on the issues that I have outlined, so judges do not rubber-stamp applications. They look at them extremely seriously.
As to evidential balance, I think there is a real misconception about what the treaty will do and about the current and previous situations. We now have, as I said on Second Reading, greater balance. The claimed imbalance is greatly exaggerated. The US requires the UK to establish probable cause. That is because that is in its constitution. It has a different jurisprudence and legal system to ours. There will always be a need to reach an approximation of laws when dealing with legal relationships between 150 countries. Complete reciprocity would be impossible. It will always be  necessary to reach an approximation, and to bring things together as far as possible to get the right balance.
On the US side, there is probable cause; on the UK side, there is not simply a statement of facts but information sufficient to warrant the issue of an arrest warrant. I have asked whether that could be termed “reasonable suspicion”, if one were to use terms with which we are more familiar, and I am told that it could. What, then, are we asking for? We have probable cause versus reasonable suspicion. That is a fair approximation, in my view, of a similar level of information and evidence. There is not a great imbalance in the requirements on each side.
When the treaty is ratified—and we are keen to make progress on the treaty; the Home Secretary has discussed it with the Attorney-General and we have pressed for it several times—the evidential balance will not change. Requests are currently subject to the Extradition Act requirements—probable cause and reasonable suspicion, or information sufficient to justify the issue of an arrest warrant. That evidential balance is not going to change when the treaty is ratified. That is another misconception that somehow, because the treaty has not yet been ratified, we are operating to a different level of proof. We are not. We are operating to the level of proof based on the Extradition Act 2003 even before the treaty is ratified. This is very important, because there has been lot of misreporting around these issues and a lot of misconceptions going on.

James Brokenshire: I have been listening carefully to what the Minister has been saying. Could she confirm what the position was before the treaty came into effect? Before the treaty, did both sides have to show sufficient evidence to justify committal for trial?

Hazel Blears: The original treaty from 1972 states:
“Extradition shall be granted only if the evidence be found sufficient according to the law of the requested Party either to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party or to prove that he is the identical person convicted by the courts of the requesting Party.”
On the surface, that looks entirely reciprocal because it refers to evidence to be found sufficient to justify the committal for trial. But it is according to the law of the requested party. In the UK, evidence sufficient to justify committal for trial was prima facie evidence but, in the US, it has always been probable cause, so there was an imbalance in those terms.
As a result of the Extradition Act, we took the decision to designate the US as a part 2 authority in the same way as Australia, Canada and New Zealand so that it can act as an authority that simply needed to give us information sufficient to show that we could issue an arrest warrant. It was not a decision taken as a favour to the United States; it was taken on the basis that there are a series of countries who have a mature  legal system that is sufficiently trustworthy to be able to have a balance of evidence in extradition terms which is an appropriate way forward.
People who have caricatured this provision—in particular, the words read out by Shami Chakrabarti, Director of Liberty—as an attempt to support US foreign policy are entirely mistaken. This decision was taken for 24 different countries, which now do not have to give us prima facie evidence but must give us information sufficient to enable the issue of an arrest warrant—“reasonable suspicion” as it were, which is a perfectly proper risk-assessment base to our relationships with these other countries. The idea that there was reciprocity, which has now been abandoned and that we have sold our citizens down the river, is an unfortunate misrepresentation of the position here.
The hon. Member for Hornchurch quite properly asked me how the treaty will help us with extradition. There are a whole range of issues that will help us to be more swift, effective and efficient in dealing with extradition—both in relation to serious and organised crime and terrorism—once the treaty has been ratified. There will be a modern, flexible definition of an extradition offence, which is archaic at the moment. Our relationships with these countries sometimes go back 100 years and have not kept up with modern offences. For example, child pornography on the internet is an offence that was never thought about when we had our original relationships with these countries decades ago. There will be swifter extradition when an individual is already in prison. At the moment, somebody has to complete their sentence before they can be extradited for a more serious offence. This will allow us to have temporary surrender.
There will be a provision for “waiver of specialty”, which is a fairly technical issue but I am told that it is important. There will be disapplication of the statute of limitations bar. In some countries, the statute of limitations is quite short and therefore if that had expired, we would not be able to extradite for serious offences—in particular, sex offences—in our country. Therefore if we can disapply the statute of limitations, it will help us to get better justice and to bring people to justice, which is the aim of this legislation. There are a whole series of issues in the treaty that are useful to us. That is why we are pressing for ratification.
Other Members have raised the issue of parliamentary scrutiny of the treaty. The designation order was subject to parliamentary scrutiny under the affirmative resolution procedure and the treaty was negotiated in the way that all treaties are negotiated, which means that there is no constitutional requirement for Parliament to approve the treaty, although sometimes legislation is needed before the Government can ratify it. It is also the case that the previous UK-US extradition treaty would have been negotiated without the approval of Parliament. There has been no divergence from the normal procedure in ratifying the treaties and then ensuring that the designation order came into effect under those terms.
I think that there was an allegation that Parliament had been misled. At the time when the statements were made, what was said was that no new treaties were being negotiated, and that was true. An existing treaty was being negotiated with America, but no new treaties were being negotiated with other countries. Therefore, I genuinely believe that all the points raised by hon. Members are based on a travesty of the truth, and we need to look at the matter in detail.
Hon. Members also raised the question of the difference in the number of extradition requests issued by the US and the number issued by the UK. It is a long-standing difference that has nothing to do with the current treaty. Such numerical imbalances between countries are fairly common. For example, between 1 January 2004 and today, the UK has returned 45 people to Spain; Spain has returned only four people to the UK. Different countries make different levels of extradition requests, so there is nothing unusual in that. I would not read anything sinister into it.

Mark Pritchard: The Minister referred to the statute of limitations. If the Senate passes this treaty, is it open to the Supreme Court to look at it and take a different view from the Senate?

Hazel Blears: As I said to the hon. Gentleman, if we ratify the treaty, someone in the US who is wanted for sex offences by the UK could not escape extradition to the UK on the ground that his offences could not be prosecuted under US law due to lapse of time. We do not need the intervention of the Supreme Court. If the treaty is ratified, it will enable us to bring more people to justice in this country for fairly serious offences.
I think that I have said enough to allow me to put the case on the amendments in general terms. Amendments Nos. 150 to 156 impose a duty on the district judge to order a person’s discharge on the ground that he committed all or part of the conduct for which his extradition is sought in the UK. The only exception to that would be where the judge thought that, in the light of all the circumstances, it was in the interests of justice that the person should be tried in the state requesting extradition.
I believe that the amendments are unworkable and unnecessary. There are adequate protections in the Extradition Act, and the amendments would not be in the interests of justice. I am concerned that they require the district judge in an extradition hearing to decide whether the wanted person should be tried in the UK. That is not practical in our legal system. We do not require judges to make such decisions in any other context. The prosecuting authorities in the UK decide whether a prosecution should be brought. They have a series of tests about the likelihood of conviction and whether it is in the public interest. We never require a judge to decide whether a case should be brought in the first place. The judge is there to consider the evidence brought before him or her and to decide on guilt or innocence, or whether an order is to be made or not, on that basis. It is not for the judge to decide whether there is an appropriate case for prosecution. Therefore, in our jurisdiction, the amendments would be entirely inappropriate.
When a person is sought for extradition, at present, there is no legal bar to stop the prosecuting authorities deciding to launch a domestic prosecution, if that is appropriate. If a domestic prosecution were launched, the extradition request would be adjourned, and it would be terminated if the person was later acquitted or convicted.
The framework decision on the European arrest warrant and the European convention on extradition have an optional ground for the refusal of extradition where the offence is committed in whole or in part in a territory of the requesting state. We chose not to implement that ground for refusal, because we wanted to make sure that we had sufficient flexibility to enable us to make the correct decisions in complex cases that sometimes cross over the jurisdiction of a number of different member states. However, we implemented a slightly different ground for refusal based on dual criminality, where the offences for the wanted person were committed outside the requesting state.
In the interests of justice, Parliament took the view when it was enacting the Extradition Acts of 1989 and 2003 that extradition could proceed where the person was wanted for conduct committed at least partly in the UK, provided that the UK had the same jurisdiction to try the conduct because it occurred outside the UK. That is why domestic prosecution would be possible, but only if the prosecuting authorities decided that it was in the public interest. That degree of flexibility is important in many extradition cases, where a person is wanted for complex cross-border crimes relating to, for example, people trafficking, money laundering or drugs trafficking, and in which, in theory, several different states would have jurisdiction to try the case.
Again, as I said in my opening remarks, there are safeguards on human rights issues, double jeopardy, ill health and lapse of time. The whole system is sufficiently robust to ensure that individuals’ rights are protected. At the same time, however, the provisions will ensure that we get the balance right, which is what I am constantly seeking to do, and make sure that the system can work as effectively as possible.
On that basis, I ask the hon. Member for Arundel and South Downs not to press his amendments, which are inflexible, unworkable and unnecessary.

Nick Herbert: Although I listened very carefully, I am not persuaded by anything that the Minister said. First, she made the broad point that the same principles and the same imbalance would apply to Australia, Canada and other countries as to the United States. When I responded to the hon. Member for Stoke-on-Trent, South, however, I was careful not to say that I was criticising the United States legal system, although others have done so and there are points to be made about the issue. However, that was not my point. My fundamental point was about the imbalance between the evidential requirements for extradition between our two countries. That point would, indeed, apply to those other countries, too, but the cases that are causing great public concern, and to which I did not and do not wish to refer specifically, involve attempted  extradition, particularly of those engaged in white collar crime, to the United States. I am not aware of any cases of concern in relation to those other countries, but if I were, I would happily have mentioned them. The idea that the Minister’s point was devastating and blew up our entire case is completely wrong, because our entire case rests on the imbalance between the treaty requirements.
Secondly, the Minister talked about the safeguards. I dealt with the inadequacy of the safeguards earlier and gave the specific example of Mr. Raisi, who would not have had any safeguards under the new treaty and who would have been extradited, even though he was not extradited before. That is not my view, but that of the senior district judge concerned. The basis of our whole concern about the operation of the provisions is that the safeguards are not adequate.
The Minister says that the evidential balance will not change if the treaty is ratified, and she is correct, but that misses the point of the amendments. I shall come to a subsequent set of amendments, which talk about the ratification of the treaty, but the point of the present amendments is to draw attention to the evidential imbalance. Specifically, they deal with the fact that such cases should, where possible, be dealt with in the country of origin and that we should not rely on extradition, when the other country’s evidential requirements might be much lower than our own.
The Minister did not answer my points about the retrospective application of the treaty, which is particularly serious in relation to white collar crime for the reasons that I set out. She did not explain adequately why the treaty was signed without Parliament’s knowledge when the Bill itself was before Parliament—Lord Falconer simply made an announcement. The fact that Ministers have the power to sign treaties is not in doubt, and we all know that they exercise that prerogative power, but the question of whether it was proper not to tell Parliament when it was actually debating the Extradition Bill is entirely another matter.
Nor did the Minister tell us why the Home Affairs Committee was not told beforehand that the new treaty was not being negotiated. She relied on some sophistry and said that the Committee had been told that new treaties were being negotiated and that this was not a new treaty, but a renegotiation of a treaty. That really is a careful use of words. The truth is that the Home Affairs Committee at the time felt that it had been misled and it made that clear in its last evidence session on the matter.
Nor did the Minister explain why the European convention on human rights, which the Government described as providing solid safeguards when the treaty was announced and during the debate on the Extradition Bill, has been deemed by the courts not to apply and not to offer the safeguards that we were told it did. The Minister failed to explain any of those things.
As I said, the amendments do not seek to deal with the non-ratification by the Senate. I shall come to that. Rather, they allow the UK courts to bar extradition if the crime can be dealt with in the UK, and that is a perfectly reasonable principle. Given the growing international nature of crime, one could argue that it is rather a sound principle that if at all possible, such matters be dealt with in our own courts. That is not to suggest that people should get off scot-free, or that instead of being extradited they will not be tried; it is to say that we prefer our own nationals, or others, to be prosecuted in our courts when possible. That will not be the case if the requesting territory demonstrates that it would be in the interests of justice for trial to take place there. What is wrong with that principle?
The Minister may think that the amendments have technical difficulties, but I think that that principle is sound, and I am surprised that it was not written into the original discussion on the Extradition Act 2003. For those reasons, I continue to believe that we are on sound ground in proposing the amendments, and we feel sufficiently strongly to test the Committee’s opinion.

James Brokenshire: I wanted briefly to comment on some of the Minister’s responses. She sought to paint the blame for the history of the matter on to a previous Conservative Administration, by suggesting that the change in the prima facie evidence rule had come about through our relations with other EU countries. However, those relations are always overarched by the protection of the European Court of Human Rights—a point to which I alluded in my comments. That puts matters in a better context than might otherwise be the case in relation to countries outside the ring net of the ECHR.
The Minister also commented on how the debate had stemmed heavily from United States issues. That is largely because the cases that have come into the public spotlight have mostly surrounded those issues. I imagine that, in the context of our relations with Commonwealth countries, we now have reciprocity in our arrangements. As Commonwealth countries, their systems of jurisprudence are likely to have been generated from the legal system in England and Wales, so there is likely to be more commonality.
The Minister commented on the protection that dual criminality would have provided, and said that it would have given safeguards. Yes it would, but it would provide greater protection if we had a more level playing field between the two countries. She made some telling comments in emphasising that, as far as the US was concerned, nothing had changed, and that the test is still one of probable cause, while we on the other hand have moved away from needing a prima facie case to justify committal for trial.
That is a different position from being provided with evidence for reasonable suspicion that might justify the issue of an arrest warrant. It is for that reason that we have committal proceedings, so that the evidence can be set out to see whether a trial is justified. The US may not have changed, but it is clear from what the Minister has said that the situation in this country has  changed significantly. It was worrying to hear that, having made that change, we do not have the benefits at this point of time to which the Minister alluded.
It would be helpful to obtain the various additional protections and steps that the Minister mentioned, but that would be only on the basis of ratification. We are not there yet, and we do not have those protections, yet the situation has changed materially. So I support the amendment proposed by my hon. Friend the Member for Arundel and South Downs and I hope that it finds favour.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.

NOES

Question accordingly negatived.

Greg Pope: Before we come to amendment No. 157, in view of the wide scope of the debate that we have just concluded and of Mr. Conway’s invitation for general comments on extradition to be made in clause 39 stand part, I have decided not to allow a debate on schedule 12 stand part. Members may wish to bear that in mind in the forthcoming debates on groups of amendments.

Nick Herbert: I beg to move amendment No. 157, in schedule 12, page 115, line 18, at end insert—
‘Case where person has not been convicted
6CIn section 84 (case where person has not been convicted) at the end of subsection (7)(b) there is inserted—
“provided always that this subsection shall not apply, except in relation to offences falling within the definition of an act of terrorism within the meaning of section 1(5) of the Terrorism Act 2000, if at the time the judge is required to proceed under this section, the designation of the category 2 territory to which extradition is requested is inconsistent with the terms of the extant bilateral extradition treaty or other arrangements with the category 2 territory”.’.

Greg Pope: With this it will be convenient to discuss the following amendments: No. 158, in schedule 12, page 115, line 18, at end insert—
‘Conviction in person’s absence
6DIn section 86 (conviction in person’s absence) at the end of subsection (7)(b) there is inserted—
“provided always that this subsection shall not apply, except in relation to offences falling within the definition of an act of terrorism within the meaning of section 1(5) of the Terrorism Act 2000, if at the time the judge is required to proceed under this section, the designation of the category 2 territory to which extradition is requested is inconsistent with the terms of the extant bilateral extradition treaty or other arrangements with the category 2 territory”.’.
No. 159, in schedule 12, page 115, line 18, at end insert—
‘Orders and regulations
6EIn section 223 (orders and regulations) at the end of subsection (8) there is inserted—
“provided however that no designation of a territory under the provisions of section 71(4), section 73(5), section 84(7) or section 86(7) shall be inconsistent with the terms of an extant bilateral extradition treaty or other arrangements, except in relation to offences falling within the definition of an act of terrorism within the meaning of section 1(5) the Terrorism Act 2000”.’.
No. 153, in schedule 12, page 116, line 35, at end insert—
‘Arrest warrant following extradition request
11AIn section 71 (arrest warrant following extradition request) at the end of subsection (4) there is inserted—
“provided always that this subsection shall not apply, except in relation to offences falling within the definition of an act of terrorism within the meaning of section 1(5) of the Terrorism Act 2000, if at the time the Secretary of State sends documents to the appropriate judge under section 70, the designation of the category 2 territory to which extradition is requested is inconsistent with the terms of the extant bilateral extradition treaty or other arrangements with the category 2 territory”.’.
No. 154, in schedule 12, page 116, line 35, at end insert—
‘Provisional warrant
11BIn section 73 (provisional warrant) at the end of subsection (5) there is inserted—
“provided always that this subsection shall not apply, except in relation to offences falling within the definition of an act of terrorism within the meaning of section 1(5) of the Terrorism Act 2000, if at the time of deciding whether to issue a warrant, the designation of the category 2 territory to which extradition is requested is inconsistent with the terms of the extant bilateral extradition treaty or other arrangements with the category 2 territory”.’.

Nick Herbert: The second set of amendments deals with the same issues that we have just discussed, but in a different way. Broadly, the amendments would suspend the next extradition arrangements with the United States until the treaty is ratified by the Senate. The amendments would nullify the effect of any designation of a part 2 territory by the Home Secretary, eliminating the requirement on such a territory to produce evidence where such designation was, or became, inconsistent with the terms of an extant extradition treaty or arrangements with the relevant part 2 territory.
The rationale for the amendments is twofold. First, they are consistent with the principles of international co-operation. As the Minister explained, the Extradition Act 2003 gives powers to the Home Secretary to designate part 2 territories through Order in Council such that those territories may request extradition of persons from the UK without the necessity to produce evidence, which the Act would otherwise require in the absence of such designation. Forty-two countries have been so designated by the Home Secretary, being signatories to the European convention on extradition—the UK has had reciprocal arrangements with them allowing extradition without evidence since 1991—plus Canada, New Zealand and Australia, which are all Commonwealth countries, and the United States.
The point is that in all instances except that of the United States, the designation is consistent with existing bilateral or convention arrangements with the  relevant territory. The designation of the US was designed to implement the terms of a new, effectively non-reciprocal treaty signed in 2003, whereby the US no longer needs to produce evidence to support an extradition request, although the UK must still produce evidence sufficient to meet the probable cause test in a US court.
Whether the treaty should be renegotiated is not a matter for the amendment. The anomaly that it would rectify is that the US has not ratified the treaty and consequently the extant treaty with the United States is the 1972 treaty, which requires that the US shall produce prima facie evidence, which we have argued is the right evidential test, with its requests. The designation of the US effectively overrules that provision even though the new treaty is not yet in force.
That situation gives the United States Senate, which is being heavily lobbied by the Irish-American and civil liberties groups not to ratify, absolutely no incentive to ratify the new treaty, meaning that even the very limited advantages afforded to the UK under the new treaty are not yet available to the UK and may never be.
The second reason for the amendment is that to undesignate the United States while the new treaty remains unratified would have only one effect: to require that the United States supports its requests for extradition by evidence alongside all other part 2 territories that have not been designated by the Home Secretary. The Government argue that the new arrangements have reduced the average time taken in processing a US application from 30 months to six months, implying that it is the fact that the US does not have to produce evidence that achieves that efficiency. That is wrong; the time would be the same even if the United States had to produce evidence. It is the procedures of the new Act that create the efficient timetable.
Consequently, the undesignation of the US would have no negative impact on our extradition arrangements with the United States. The United States could be redesignated as soon as the new treaty is ratified, assuming that the treaty remains in its current form. In the meantime, the requirement to produce evidence once again might provide a stimulus to the US to move ahead and ratify, where currently it has none.
I should emphasise to the Committee that early-day motion 241, tabled by my hon. Friend the Member for Henley and currently before the House, has so far attracted 150 cross-party signatures. That early-day motion urges the Government to defer approving the extradition to the United States of any British subject until such time as the Senate ratifies the extradition treaty.
The way in which the Government failed to secure the ratification of the treaty by the Senate before unilaterally introducing the extradition arrangements was a mistake. As I mentioned in the debate on the prior group of amendments, it surprised the US  authorities. Any pressure that the Minister is seeking to place on the United States Government is entirely weakened, because they have little incentive to introduce the ratification procedure, possibly at some political cost, considering that we have already unilaterally introduced arrangements to implement our side of the treaty.
The amendments would redress the balance and restore the incentives for the United States Government to ratify a treaty agreed between the Heads of State.

Hazel Blears: I do not propose to go over the previous arguments in any detail. We have debated them sufficiently.
I will correct some information that I gave the Committee previously, when I said that there was an imbalance in the number of people extradited between Spain and the UK. Apparently, Spain has returned 45 people to us and we have only sent four people to them. I got it the wrong way round. Apparently, as some might be aware, Spain is a popular destination for some of our criminals, so there is more one-way traffic than there might otherwise have been. That is something to do with the sunshine on the Costa del Sol. That was for the Committee’s information.
The amendments would limit the operation of part 2 of the Extradition Act to requests for terrorist offences only, where a requesting state’s designation is inconsistent with the treaty or other arrangement in force between it and the UK. I believe that the amendments would be counter to the interests of justice and could have some serious, unintended side effects, which could put us in a difficult position in relation to justice.
I am not sure whether the amendments are an attempt to punish one of our extradition partners for being slow in ratifying the treaty, but if so that is not an appropriate way to proceed. We are all keen to get ratification, but this kind of mechanism is not an appropriate way to make progress. As I said before, there is an erroneous belief that somehow there was balance in the requirements of the 1972 treaty. There was not; there was imbalance. The UK only ever had to show probable cause. The United States had to show prima facie evidence. There was clearly imbalance in the 1972 provisions. People could say that the scales were in the other direction. What we have tried to do through the Extradition Act is to get balance, so that there is a reasonable read-across in the levels of information that people have to put forward.
The effect of the amendments would be to limit extradition not only to the US, but possibly to other states as well, in ways that could be difficult to predict. For example, somebody could murder all the occupants of a nursery school in a territory caught by the amendment, flee to the UK and be beyond the law because the amendments require that there should be some inconsistency in the treaty provision. Many of our relationships with different countries are many years old. There could well be inconsistencies in the various treaties between us.
I also think that the amendments are not practicable. Extradition requests are considered in the UK under the Extradition Act 2003, which overhauled the law and brought it up to date to keep pace with accelerating developments in modern criminality. Most of our treaties are very old. Some date from the late 19th or early 20th century. If we trawled through those, we would find a range of inconsistencies, and if people could escape the extradition provisions as a result, that would have a serious effect on our legal system.
If we limited our extradition powers in the way proposed and refused all but requests for terrorists from the territories affected by the amendments, those states might take reprisals against the UK and refuse our comparable requests. Someone might commit a very serious crime in the UK, flee abroad to a state reciprocating the UK’s amended extradition arrangements and be beyond the reach of UK law. I am sure that the hon. Gentleman does not intend that, but if he thinks seriously about it, he will see that if we suspended the designation of any state whose position was inconsistent with the treaty, we could catch a range of states and then find ourselves unable to extradite some pretty serious criminals. Furthermore, we would face the possibility of those states taking a similar position against us, leading to our law not being as effective as we want it to be. On that basis, I ask the hon. Gentleman to withdraw the amendment.

Nick Herbert: First, in tabling the amendments, I took care, as I should have said in moving them, to exclude terrorism offences. The amendments should make that clear. Secondly, I am not persuaded by the Minister’s argument, because she has not given one example of where there might be an unintended side effect. She just said, “There might be an unintended side effect.” If the Minister had come with a persuasive list of extradition arrangements that would no longer be possible as a result of the amendment, which would threaten our ability to deal with serious crimes—terrorism, as I explained, would be excluded—that might have persuaded the Committee. However, she simply said that that might be the effect, so no one has done the work to see whether it would be the effect of the amendment.
Let me remind the Committee of what the amendment would do. The principle, which is simple, is that the operation of the Extradition Act 2003 and the designation under part 2 should not apply until the treaty is ratified by the Senate. That is a perfectly reasonable position to take. What was wrong was that, as I said, the Government implemented the treaty on a one-sided basis instead of waiting to see whether the Senate would introduce it.

Michael Fabricant: I am well aware that the United Kingdom Government are trying to ensure that the Senate ratifies the treaty. At the moment, however, they have no lever at all to get the Senate to ratify it, whereas if the Senate thought that the treaty would not  exist unless it did ratify it, at least that would give the British Government some sort of lever to get the Senate to do just that.

Nick Herbert: My hon. Friend is right. What he describes is part of the purpose of the amendments.

Hazel Blears: Another misconception is that the 2003 treaty has been ratified by the UK; it has not. The treaty will come into force when the instruments of ratification have been exchanged, so there are levers for both sides to get the benefits of the treaty. As I said, it has not yet been ratified; it is not a one-sided agreement in those terms.

Nick Herbert: That is an absolutely fatuous intervention, because the purpose of the designation, by order, was to implement our side of the treaty ahead of agreement by the other side. That is exactly what we are discussing. We have in effect implemented our side of the treaty—by order, with only one and a half hours of debate.

Hazel Blears: I am not sure whether the hon. Gentleman was listening when, in answer to the comments of the hon. Member for Hornchurch, I went through the range of benefits of having the treaty. The benefits apply two ways. That is about getting people who have already been convicted and ensuring that we do not have a statute of limitations, so offences are not barred. Those are mutual and reciprocal benefits of the treaty. The sole issue on which the hon. Member for Arundel and South Downs appears to be fixated is that of probable cause and information sufficient to enable the issue of an arrest warrant. In fact the treaty does not alter that evidential balance, so he is fixated on a point that is unchanged by the treaty’s ratification. All of the other issues are important matters—making extradition speedier and more effective, or making the law work better. The hon. Gentleman appears entirely to ignore those issues by concentrating on a theoretical possibility, when the treaty does not change the evidential balance.

Greg Pope: Order. May I appeal for shorter interventions?

Nick Herbert: First, if the Minister were someone facing extradition to the United States now, through the retrospective application of these arrangements for a crime committed which would not have been a crime under British law, she might be fixated on it as well. If the Minister is so keen to see these other provisions—

Hazel Blears: Will the hon. Gentleman give way?

Nick Herbert: No, I will not. I shall complete my point. If the Minister is so keen to see other aspects of the extradition treaty brought into force then why implement that key part of it one-sidedly, thereby removing all pressure on the United States Senate to ratify it? The Minister cannot have it both ways: standing up to say how important it is that we secure the agreement and then effectively throwing away the only true negotiating card that the Government had—that is, to implement the key part of the treaty, in  which the United States is interested, ahead of time and by order. We sought to make that perfectly fair point.

Hazel Blears: The hon. Gentleman said that if I were being prosecuted for an offence that was not an offence in this country, I might be fixated on the issue. I wonder again whether he was listening when I talked about the safeguard of dual criminality. People would therefore not be sought for extradition for offences that were not offences here in the UK.

Nick Herbert: Yes, but the Minister knows perfectly well that a great deal of concern has been expressed outside the House. I am seeking to avoid going into specific cases, but that is the essence of the concern relayed to me by the employers’ organisations—the CBI and the Institute of Directors—about company directors who face potential extradition under these arrangements. The Minister did not respond to my point that there is a retrospective element to this legislation, which means that it may apply to offences that would not actually have been offences in this country because of that retrospective nature. That is a serious issue, so in responding to the Minister I was seeking to explain why, in her words, we have been fixated on that. It is because an injustice may be done to those individuals; that is as far as I wish to go in commenting on particular cases. However, there is absolutely no doubt that great concern has been expressed about the one-sided nature of these arrangements. To suggest the idea that we are fixated is simply to cheapen the debate.
These amendments would give the Government a negotiating tool. They would help to put pressure on the United States. I am not persuaded that they would have unintended side effects, since the Minister could not say what those really were. I therefore wish to put these amendments to the vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.

NOES

Question accordingly negatived.

Lynne Featherstone: I beg to move amendment No. 53, in schedule 12, page 117, line 42, after ‘Convention’, insert
‘, or whose claim for asylum under the Refugee Convention is pending’.

Greg Pope: With this it will be convenient to discuss the following amendments: No. 55, in schedule 12, page 117, line 45, leave out
‘of Article 2 or 3’.
No. 54, in schedule 12, page 118, line 2, at end insert
‘, or whose claim that his removal from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with his Convention rights is pending’.

Lynne Featherstone: Amendments Nos. 53 and 54 are possibly less exciting than the previous debate, but nevertheless important. Schedule 12, which will give the Secretary of State the discretion to issue an extradition certificate in cases involving those with refugee status and those with humanitarian protection, is welcome. If a person’s extradition would leave him or her at risk of persecution or treatment contrary to the European convention on human rights, the Secretary of State should be able to refuse to issue a certificate without the case having to go to court.
However, the purpose of amendments Nos. 53 and 54 is to query why the power to exercise discretion does not extend to those who have pending asylum or human rights claims and applies only to those who have been granted some form of status. If someone is likely to be granted protection, the same discretionary power should apply, especially if the person concerned has a strong case and will be granted leave to stay in the country.
Amendment No. 55 is another probing amendment. I would like the Minister to expand on why discretion is limited to those who receive protection under articles 2 and 3 of the European convention on human rights. Why does it not extend to those people whose grounds to remain in the UK are based on other articles of the convention, particularly article 8? Although it would be rare for removal to breach another article without also breaching article 3 and/or article 8, precedent states clearly that, in theory, that is possible—it happened in the Lords in the case of Ullah and Do. Will the Minister clarify whether the discretionary power could be applied to unaccompanied asylum-seeking children who have been granted discretionary leave? The amendments to the Act suggest that it would not.
Relevant to amendments nos. 53, 54 and 55, I have three general points to which I would like the Minister to respond. First, under the Extradition Act, a judge will have to consider all potential human rights bars to the request’s being met. Why can the Act not be amended to allow the Secretary of State to consider all human rights and protection issues without the need for lengthy court proceedings? Secondly, paragraph 337 of the explanatory notes states that discretionary power
“is only needed in non-EU cases because there is a presumption that applications for protection from EU member states are manifestly unfounded.”
However, that does not take into account that any such presumption is rebuttable. Why is there no discretion for category 1 countries? Thirdly, what was the thinking behind paragraph 339 of the explanatory notes? It states:
“However, the discretion need not automatically lead to a decision not to certify the request: a case could arise where refugee status had been obtained fraudulently because the person lied about his criminal past; or if an asylum application is still in train when the request is received, the information in the extradition request could lead to a decision not to grant asylum, but to continue instead with certification of the extradition request.”
It is entirely accurate to suggest that information that comes to light as a consequence of an extradition request may affect a person’s refugee status or claim for asylum. However, that is just one more factor to be taken into account in the decision. Deciding whether a criminal past trumps the granting of international protection—essentially, applying the exclusion clause under the refugee convention—requires a fine balancing act between the severity of the offence and the likelihood of persecution. Therefore, I seek the Minister’s reassurance that in accordance with international practice and OHCHR guidance, any exclusion provisions will be applied and construed restrictively.

Hazel Blears: I will do my best to respond to the hon. Lady. She lost me at a certain point in the middle of her contribution, but hopefully what I have to say will reassure her.
I cannot support the amendment but I accept that the hon. Lady is using it to get further information. The amendment would enable the Home Secretary to refuse to certify an extradition request when the subject of the request has an outstanding asylum claim, as well as in cases in which the subject has been granted asylum. We all know that a pending asylum application can take years to resolve, and were we to further widen the Home Secretary’s discretion in the way proposed the extradition process could be seriously delayed and obstructed. We are seeking to draw a balance between ensuring that people are sufficiently protected and ensuring that extradition can proceed where appropriate and proper in order to bring people to justice.
We have said that when a person has been granted asylum, the Home Secretary can refuse to certify the extradition request. However, if we expanded that provision to persons seeking asylum, we would be going too far in terms of the length of time that it could take to resolve those cases. The amendments could even encourage perhaps unmeritorious applications for asylum, or for leave to enter or remain, which could be counter to the interests of justice. For example, victims of, and witnesses to, a serious crime might be made to wait for justice for an inordinately long time.
Our thoughts must be with the victims of the crime for which the extradition is sought, as well as the individuals subject to the extradition order. We must balance those competing interests and rights. If someone has to wait for three or four years for a pending asylum application to be granted before extradition, that person might be prosecuted for, say, murder or a terribly serious sex crime, six or seven years after the event. That would deny justice to the victims of that crime.
The fact that a person has a pending application for asylum, or for leave to enter or remain, does not mean that they have a good case. Just because they have made the application, it does not mean that they have a well founded case. Of course, a person whose extradition is requested can apply for asylum, or leave to enter or remain, but that process should run parallel to the extradition process, in which the district judge is empowered to refuse extradition if that would contravene the person’s human rights.
Similarly, I cannot commend to the Committee amendment No. 55. The Government are firmly of the view that only leave granted on the grounds of article 2—the right to life—or article 3—the prohibition of torture—of the European convention on human rights provides the basis for the discretion to refuse to certify an extradition request, because articles 2 and 3 provide a person with an unqualified right to claim protection. All the other articles in the ECHR provide for qualified rights, which is why there have been instances in which conflicting rights have been distinguished.
Were a person who had been granted leave on the basis of a qualified right, to be the subject of an extradition request, he could argue at the extradition hearing that that leave should be sufficient to discharge him from extradition proceedings. As I said in an earlier debate, there have been cases in which judges have discharged the extradition request on the basis of human rights considerations. Those matters are looked at by judges extremely seriously, but the unqualified rights in articles 2 and 3 ought to provide the basis for a decision, rather than the qualified rights such as those in article 8 regarding the right to respect for private and family life.
Clearly, human rights provisions can override an extradition request. Those matters should be left to the courts, which will hear the evidence, have the facts before it and make that difficult and balanced judgment. The unqualified rights under articles 2 and 3 will take precedence over the extradition application because they provide for fundamental rights—the right to life and the right not to be tortured. That is when it is appropriate for those rights to take precedence over the extradition request, but in other cases, the courts would have to balance those rights and consider the evidence.
On that basis, I hope that the hon. Lady will accept, particularly in relation to amendment No. 53, the point around a possible delay. I would be concerned if people being extradited for serious crimes could not be tried for many years, and if the witnesses to, and victims of, that crime could be faced with the prospect of not seeing justice for a long time. I ask her to withdraw her amendment.

Lynne Featherstone: May I ask the Minister to clarify the one point to which she did not respond? Could the discretionary power be applied to unaccompanied asylum-seeking children who have been granted discretionary leave? I am seeking clarification on that point.

Hazel Blears: I did not really understand that point. I could not imagine circumstances in which there would be an extradition request for a child for a serious crime. I do not know whether the hon. Lady has an example of a case in which an unaccompanied child might be subject to an extradition request.

Lynne Featherstone: I do not have an example to hand. Perhaps I can correspond with the Minister on that point. On the general issues that arise from the amendments and the Minister’s response, I thank her for her clarification. The object was to test out the issues, and she has made a good case. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Hazel Blears: I beg to move amendment No. 90, in schedule 12, page 122, line 25, at end insert—
‘After section 10 of the Justice (Northern Ireland) Act 2004 (c.4) there is inserted—
“10AProsecution right of appeal against grant of bail by county court judge in extradition proceedings
(1)Section 10 applies to the granting of bail by a county court judge in extradition proceedings as it applies to the granting of bail by a magistrates’ court in such proceedings; and references in that section to a magistrates’ court shall be construed accordingly.
(2)In this section “extradition proceedings” has the same meaning as in section 10.”’.
This is a technical amendment to bring the law in Northern Ireland in respect of the granting of bail in extradition proceedings into line with that in England and Wales. At present, the prosecution cannot appeal the granting of bail in extradition proceedings in Northern Ireland, whereas it can in England and Wales. In the interests of consistency, it is appropriate to make similar provisions in Northern Ireland. Extradition proceedings are dealt with by county court judges, and the amendment ensures that the prosecution can appeal the granting of bail by a county court judge in Northern Ireland.

Amendment agreed to.
The Chairman, being of the opinion that the principle of the schedule and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89(3)(C), That this schedule, as amended, be the Twelfth schedule to the Bill.

Question agreed to.

Schedule 12, as amended, agreed to

New Clause 11 - FORFEITURE OF INDECENT PHOTOGRAPHS OF CHILDREN: NORTHERN IRELAND

‘(1)The Protection of Children (Northern Ireland) Order 1978 (S.I.1978/1047 (N.I.17)) is amended as follows.
(2)In Article 4 (entry, search and seizure), for paragraph (2) there is substituted—
“(2)In this Article “premises” has the same meaning as in the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I.1989/1341 (N.I.12)) (see Article 25 of that Order).”
(3)For Articles 5 and 6 (forfeiture) there is substituted—
“5Forfeiture
The Schedule to this Order makes provision about the forfeiture of indecent photographs and pseudo-photographs.”
(4)At the end of the Order there is inserted the Schedule set out in Schedule (Schedule to be inserted into the Protection of Children (Northern Ireland) Order 1978).
(5)The amendment made by subsection (2) has effect only in relation to warrants granted under Article 4(1) of the Protection of Children (Northern Ireland) Order 1978 after the commencement of that subsection.
(6)The amendments made by subsections (3) and (4) and Schedule (Schedule to be inserted into the Protection of Children (Northern Ireland) Order 1978) have effect whether the property in question was lawfully seized before or after the coming into force of those provisions.
This is subject to subsection (7).
(7)Those amendments do not have effect in a case where the property has been brought before a resident magistrate under Article 5(1) of the Protection of Children (Northern Ireland) Order 1978 before the coming into force of those provisions.’. —[Hazel Blears.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 13 - SENTENCES OF IMPRISONMENT FOR BAIL OFFENCES

‘(1)Part 12 of the Criminal Justice Act 2003 (c.44) (sentencing) is amended as follows.
(2)In section 195 (interpretation of terms used in Chapter 3), for the definition of “sentence of imprisonment” there is substituted— ““sentence of imprisonment” does not include a sentence of imprisonment passed in respect of a summary conviction for an offence under section 6(1) or (2) of the Bail Act 1976.”
(3)In section 237 (meaning of “fixed-term prisoner” for purposes of Chapter 6), after subsection (1) there is inserted—
“(1A)In subsection (1)(a) “sentence of imprisonment” does not include a sentence of imprisonment passed in respect of a summary conviction for an offence under section 6(1) or (2) of the Bail Act 1976.”
(4)In section 257 (additional days for disciplinary offences), after subsection (2) there is inserted—
“(3)For the purposes of this section “fixed-term prisoner” includes a person serving a sentence of imprisonment passed in respect of a summary conviction for an offence under section 6(1) or (2) of the Bail Act 1976.”
(5)In section 258 (early release for fine defaulters and contemnors), after subsection (1) there is inserted—
“(1A)This section also applies to a person serving a sentence of imprisonment passed in respect of a summary conviction for an offence under section 6(1) or (2) of the Bail Act 1976.”
(6)In section 305 (interpretation of Part 12), in paragraph (c) of the definition of “sentence of imprisonment”, at the end there is inserted “(including contempt of court or any kindred offence)”.’. —[Hazel Blears.]

Brought up, and read the First time.

Hazel Blears: I beg to move, That the clause be read a Second time.

Greg Pope: With this it will be convenient to discuss Government amendment No. 160.

Hazel Blears: Currently, magistrates can sentence offenders to short custodial sentences of up to three months’ imprisonment for failing to attend court or a  police station when bailed to do so under the Bail Act 1976. An offender serves half the sentence of imprisonment before being released unconditionally. The new clause is designed to maintain that position once the new sentence of custody plus is commenced. When it is commenced, it will be the only custodial sentence of less than 12 months available to the courts, other than in a very limited number of cases such as contempt of court. It was intended that Bail Act offences should be within the limited exception to custody plus and that courts should still be able to impose short custodial sentences for those offences.
The offence of failing to surrender under section 6 of the Bail Act can be compared to contempt of court in that the purpose of the sentence is punishment, the sentence for the substantive offence being the correct place to address any rehabilitative needs of the offender. However, the Criminal Justice Act 2003 does not expressly exclude Bail Act offences from the custody plus regime. Without the amendment, when custody plus is brought in, the sentencing powers of magistrates courts in relation to Bail Act offences will be unclear. One interpretation is that they could lose their powers to give a custodial sentence for the offence.
In principle, without the amendment, Bail Act offences will be subject to the custody plus regime, but in practice the magistrates courts will not be able to impose a sentence of custody plus. That is because, as it was not the policy intention that custody plus should apply to Bail Act offences, the Criminal Justice Act 2003 does not increase magistrates’ maximum sentencing powers from the existing position of three months for those offences, as it does for other summary offences. As the minimum custody plus sentence is 28 weeks, the magistrates court will not have the power to pass even the minimum custody plus sentence for Bail Act offences. The amendment is, therefore, needed to make it clear that the custody plus regime does not apply to Bail Act offences and that courts will be able to impose short custodial offences for them.
The measure is small but important. If magistrates were unable to impose short sentences for breach of bail, bail would fall into disrepute. That is why the measures should be available to the courts. The most recent figures show that more than 32,000 sentences were passed for failure to attend as the principal offence, and that 4,000 of the offenders were sentenced to immediate custody. The average custodial sentence was some 27 days, while 86 per cent. of those sentenced to custody received a sentence of one month or less. It is a short sentence, but it is a punishment, and it means that bail is taken seriously. One of the most effective things that we can do in our criminal justice system is to ensure that somebody who is bailed but does not turn up or cannot be bothered gets a custodial sentence. It is a useful new clause and I commend it to the Committee.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 2 - PENAL CUSTODY FOR CHILDREN

‘(1)No child shall be detained in a young offender institution or a secure training centre.
(2)“child” means a person under the age of eighteen.’.—[Lynne Featherstone.]

Brought up, and read the First time.

Lynne Featherstone: I beg to move, That the clause be read a Second time.
This is a probing new clause. It is about trying to end penal custody for children, following the publication of the Carlile inquiry report. We believe that the Bill offers the perfect opportunity to improve the situation. Figures from the Children’s Rights Alliance for England show that about 83 per cent. of children who are locked up are held in state-run prisons, 9 per cent. are held in private prisons or secure training centres and the rest are in local authority secure children’s homes.
Children should only ever be detained in local authority secure children’s homes, where child care standards are upheld and social care professionals can intervene positively in the lives of children and their families. Secure children’s homes provide young people with support tailored to their individual needs. Currently, they are generally used to accommodate young offenders aged 12 to 14, girls up to the age of 16 and 15 to 16-year-old boys assessed as vulnerable.
In order to give children a chance of having a future and improving their lives, instead of learning new ways of being a criminal from more experienced criminals in the state prison system, we ought to stop sending them to places that do not address their needs and help them out of the criminal system. Children in penal custody are known to be among the most disadvantaged in our society. More than a quarter have the literacy and numeracy ability of an average seven-year-old, 85 per cent. show signs of a personality disorder, over half have been in care or involved with social services and most have been excluded from school.

Mark Pritchard: Will the Minister give way?

Lynne Featherstone: Promoted so soon!

Mark Pritchard: I am grateful to the shadow Minister for giving way. I have a point about children in care, which is a slight deviation, but hopefully a helpful one.
Does the hon. Lady agree that, although these measures are dealing with the end problem, it would be better to deal with children in care by ensuring that social services monitor their education, so that they do not leave school without qualifications and become encouraged, through their circumstances, to enter into a life of crime? We should be helping such children while they are in care, many of whom have good intellects and skills; in fact, they all have skills—just different ones. We should be addressing the front end, not just the outputs.

Lynne Featherstone: I could not agree more with the hon. Gentleman. Clearly, we should be thinking about what can be done in advance, because prevention is preferable to cure. However, the cure would be blighted were the children to be put in prisons where it is likely that they would not get the help that they needed.
Penal custody does not address the problems of severely disadvantaged children, but local authority secure children’s homes do. Some 82 per cent. of children who leave young offender institutions reoffend after incarceration. The Minister and I have previously discussed our keenness to change behaviour and to give people pathways out of criminality. I hope that she will answer positively, albeit this is a probing new clause.

Fiona Mactaggart: I thank the hon. Lady for raising this important issue, which has been extensively discussed in Parliament. It is right that we take great care in those rare circumstances—unfortunately, not rare enough—where children end up in the custody of the state following offending.
The first responsibility, as the hon. Member for The Wrekin (Mark Pritchard) said, is for the state to intervene in a preventive way, to reduce the factors associated with offending by young people. Education is a factor, and others relate to family offending patterns, lack of parental support and so on. Indeed, much of the work done by my right hon. Friend the Minister of State on the respect agenda and support for parenting has played an important part in reducing offending among children.

Mark Pritchard: While the Government have for many months—indeed, for many years—lectured parents throughout the land on how to be a good parent, the fact remains that the worst parent in the land is the state itself.

Fiona Mactaggart: What the hon. Gentleman means is that the outcomes for children in the care of the state are often the worst outcomes. I am afraid that his remark did not deal with causation, because such poor outcomes are among the factors that make it likely that a child will come into the care of the state. Those children are often themselves victims of horrendous crimes. They have often had several very damaging experiences before coming into the care of the state. The hon. Gentleman is right to be passionate about the need to improve their care. I assure him that much has been done to that end by the Government. However, he is not right to assume that the nature of state care is the only cause of the problems of those young people. Indeed, their problems are, as I have said, among the reasons for bringing them into care.
The secure estate for children and young people, to which the new clause relates, is diverse, with different types of establishment adapted to the needs of the different age groups, and the varying degrees of vulnerability of the children who are detained. Young offender institutions provide for the upper part of the  age range—15 to 17-year-olds, apart from the most vulnerable of those. It is reassuring that we have now gone past the stage during which rare cases occurred of 17-year-olds—mostly young women—in the mainstream prison estate. That group is now separated from the adult offending population.
Secure training centres are predominantly for those younger than the 15 to 17-year-old group—the younger trainees. The centres are particularly focused on education. They can accommodate some offenders whom local authority children’s homes find too difficult to manage. An issue arises of the difficulties of managing some of those young people. The effect of the new clause would be to limit custodial provision for all under-18s to secure children’s homes. Those are valuable institutions and they form an important part of the secure estate. They are used primarily for younger offenders. Precisely for that reason, however, they would not be able to cope with a large influx of 16 and 17-year-olds. Introducing large numbers of people of that age group into secure children’s homes, even if it were practical, would put younger children at risk. I understand why the hon. Lady has tabled the new clause, but our approach of segmenting age groups seems to me wiser than the one that the new clause would require us to take.
The Government have always made it clear that custody can only be a last resort for offenders who are children. That is the point on which we can agree. We believe that there is scope for reducing the number of under-18s in custody. The Youth Justice Board has a specific target of reducing the under-18 custodial population by 10 per cent. In many ways that would, I believe, be the first place to start in reducing the detention of children, wherever that might be. However, we are firmly persuaded that in the case of serious or dangerous offenders—even though they might be young—custody should be available to protect the public. We would be failing in our duty if we did not take the necessary steps to achieve that.
I recognise the excellent intentions underlying the new clause, but removing under-18 places in young offenders institutions and secure training centres would do nothing to reduce crime, and would not help the troubled young people that the proposal is intended to serve. By putting older young people and young people of a younger age in the same institution, it could endanger many of them.

Lynne Featherstone: I thank the Minister for her cogent and intelligent response. I do not think that either of us has cracked the problem completely, because I accept that there is an obvious danger in putting someone who has behaved dangerously together with younger children. The 10 per cent. target for reducing the number of under-18s who are given custodial sentences is a good start. Nevertheless, I feel that something is still missing for 15 to 17-year-olds, in terms of giving them what they need to get back on a path into society with the skills that they need. However, on the basis that neither of us has reached a  totally satisfactory solution, and that we are all seeking to move in the same direction, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Schedule 2 - ‘SCHEDULE TO BE INSERTED INTO THE PROTECTION OF CHILDREN (NORTHERN IRELAND) ORDER 1978

“SCHEDULE FORFEITURE OF INDECENT PHOTOGRAPHS OF CHILDREN Application of Schedule 1(1)This Schedule applies where— (a)property which has been lawfully seized in Northern Ireland is in the custody of a constable, (b)ignoring this Schedule, there is no legitimate reason for the constable to retain custody of the property,
Application of Schedule
1(1)This Schedule applies where—
(a)property which has been lawfully seized in Northern Ireland is in the custody of a constable,
(c)the constable is satisfied that there are reasonable grounds for believing that the property is or is likely to be forfeitable property, and
(d)ignoring this Schedule, the constable is not aware of any person who has a legitimate reason for possessing the property or any readily separable part of it.
(2)The following property is “forfeitable property”—
(a)any indecent photograph or pseudo-photograph of a child;
(b)any property which it is not reasonably practicable to separate from any property within paragraph (a).
(3)For the purposes of this paragraph—
(a)a part of any property is a “readily separable part” of the property if, in all the circumstances, it is reasonably practicable for it to be separated from the remainder of that property, and
(b)it is reasonably practicable for a part of any property to be separated from the remainder if it is reasonably practicable to separate it without prejudicing the remainder of the property or another part of it.
(4)The circumstances mentioned in sub-paragraph (3)(a) include the time and costs involved in separating the property.
Possession pending forfeiture
2(1)The property must be retained in the custody of a constable until it is returned or otherwise disposed of in accordance with this Schedule.
(2)Nothing in section 31 of the Police (Northern Ireland) Act 1998 (property coming into the possession of the police) applies to property held under this Schedule.
The relevant officer
3“The relevant officer”, in relation to any property, is the constable who for the time being has custody of the property.
Notice of intended forfeiture
4(1)The relevant officer must give notice of the intended forfeiture of the property (“notice of intended forfeiture”) to—
(a)every person whom he believes to have been the owner of the property, or one of its owners, at the time of the seizure of the property,
(b)where the property was seized from premises, every person whom the relevant officer believes to have been an occupier of the premises at that time, and
(c)where the property was seized as a result of a search of any person, that person.
(2)The notice of intended forfeiture must set out—
(a)a description of the property, and
(b)how a person may give a notice of claim under this Schedule and the period within which such a notice must be given.
(3)The notice of intended forfeiture may be given to a person only by—
(a)delivering it to him personally,
(b)addressing it to him and leaving it for him at the appropriate address, or
(c)addressing it to him and sending it to him at that address by post.
(4)But a notice given in accordance with sub-paragraph (1)(b) may, where it is not practicable to give the notice in accordance with sub-paragraph (3), be given by—
(a)addressing it to “the occupier” of those premises, without naming him, and
(b)leaving it for him at those premises or sending it to him at those premises by post.
(5)Property may be treated or condemned as forfeited under this Schedule only if—
(a)the requirements of this paragraph have been complied with in the case of the property, or
(b)it was not reasonably practicable for them to be complied with.
(6)In this paragraph “the appropriate address”, in relation to a person, means—
(a)in the case of a body corporate, its registered or principal office in the United Kingdom;
(b)in the case of a firm, the principal office of the partnership;
(c)in the case of an unincorporated body or association, the principal office of the body or association;
(d)in any other case, his usual or last known place of residence in the United Kingdom or his last known place of business in the United Kingdom.
(7)In the case of—
(a)a company registered outside the United Kingdom,
(b)a firm carrying on business outside the United Kingdom, or
(c)an unincorporated body or association with offices outside the United Kingdom,
the references in this paragraph to its principal office include references to its principal office within the United Kingdom (if any).
Notice of claim
5(1)A person claiming that he has a legitimate reason for possessing the property or a part of it may give notice of his claim to a constable at any police station in Northern Ireland.
(2)Oral notice is not sufficient for these purposes.
6(1)A notice of claim may not be given more than one month after—
(a)the date of the giving of the notice of intended forfeiture, or
(b)if no such notice has been given, the date on which the property began to be retained under this Schedule (see paragraph 2).
(2)A notice of claim must specify—
(a)the name and address of the claimant;
(b)a description of the property, or part of it, in respect of which the claim is made;
(c)in the case of a claimant who is outside the United Kingdom, the name and address of a solicitor in the United Kingdom who is authorised to accept service, and to act, on behalf of the claimant.
(3)Service upon a solicitor so specified is to be taken to be service on the claimant for the purposes of any proceedings by virtue of this Schedule.
(4)In a case in which notice of intended forfeiture was given to different persons on different days, the reference in this paragraph to the day on which that notice was given is a reference—
(a)in relation to a person to whom notice of intended forfeiture was given, to the day on which that notice was given to that person, and
(b)in relation to any other person, to the day on which notice of intended forfeiture was given to the last person to be given such a notice.Automatic forfeiture in a case where no claim is made
7(1)If the property is unclaimed it is treated as forfeited.
(2)The property is “unclaimed” if, by the end of the period for the giving of a notice of claim—
(a)no such notice has been given in relation to it or any part of it, or
(b)the requirements of paragraphs 5 and 6 have not been complied with in relation to the only notice or notices of claim that have been given.
(3)Sub-paragraph (1) applies in relation to a readily separable part of the property as it applies in relation to the property, and for this purpose sub-paragraph (2) applies as if references to the property were to the part.
(4)In this paragraph “readily separable part” has the meaning given by paragraph 1.
Decision whether to take court proceedings to condemn property as forfeited
8(1)Where a notice of claim in respect of the property, or a part of it, is duly given in accordance with paragraphs 5 and 6, the relevant officer must decide whether to take proceedings to ask the court to condemn the property or a part of it as forfeited.
(2)The decision whether to take such proceedings must be made as soon as reasonably practicable after the giving of the notice of claim.
Return of property if no forfeiture proceedings
9(1)This paragraph applies if, in a case in which a notice of claim has been given, the relevant officer decides—
(a)not to take proceedings for condemnation of the property, or
(b)not to take proceedings for condemnation of a part of the property.
(2)The relevant officer must return the property or part to the person who appears to him to have a legitimate reason for possessing the property or, if there is more than one such person, to one of those persons.
(3)Any property required to be returned in accordance with sub-paragraph (2) must be returned as soon as reasonably practicable after the decision not to take proceedings for condemnation.
Forfeiture proceedings
10(1)This paragraph applies if, in a case in which a notice of claim has been given, the relevant officer decides to take proceedings for condemnation of the property or a part of it (“the relevant property”).
(2)The court must condemn the relevant property if it is satisfied— (a)that the relevant property is forfeitable property, and (b)that no-one who has given a notice of claim has a legitimate reason for possessing the relevant property. This is subject to sub-paragraphs (5) and (7).
(3)If the court is not satisfied that the relevant property is forfeitable property, the court must order its return to the person who appears to the court to have a legitimate reason for possessing it or, if there is more than one such person, to one of those persons.
(4)If the court is satisfied—
(a)that the relevant property is forfeitable property, and
(b)that a person who has given a notice of claim has a legitimate reason for possessing the relevant property, or that more than one such person has such a reason,
the court must order the return of the relevant property to that person or, as the case may be, to one of those persons.
(5)Where the court is satisfied that any part of the relevant property is a separable part, sub-paragraphs (2) to (4) apply separately in relation to each separable part of the relevant property as if references to the relevant property were references to the separable part.
(6)For this purpose a part of any property is a “separable part” of the property if—
(a)it can be separated from the remainder of that property, and
(b)where a person has a legitimate reason for possessing the remainder of that property or any part of it, the separation will not prejudice the remainder or part.
(7)Where the court is satisfied—
(a)that a person who has given a notice of claim has a legitimate reason for possessing part of the relevant property, and
(b)that, although the part is not a separable part within the meaning given by sub-paragraph (6), it can be separated from the remainder of the relevant property,
the court may order the return of that part to that person.
(8)Sub-paragraph (7) does not apply to any property required to be returned to a person under sub-paragraph (4).
Supplementary orders
11(1)Where the court condemns property under paragraph 10(2)—
(a)it may order the relevant officer to take such steps in relation to the property or any part of it as it thinks appropriate, and
(b)where it orders a step to be taken, it may make that order conditional on specified costs relating to the taking of that step being paid by a specified person within a specified period.
(2)A court order under paragraph 10(3), (4), (5) or (7) requiring the return of a part of the relevant property to a person may be made conditional on specified costs relating to the separation of the part from the remainder of the relevant property being paid by that person within a specified period.
(3)Where the court makes an order under paragraph 10(7) for the return of a part of the relevant property—
(a)it may order the relevant officer to take such steps as it thinks appropriate in relation to any property which will be prejudiced by the separation of that part, and
(b)where it orders a step to be taken, it may make that order conditional on specified costs relating to the taking of that step being paid by a specified person within a specified period.
(4)For the purposes of this paragraph “specified” means specified in, or determined in accordance with, the court order.
Supplementary provision about forfeiture proceedings
12Proceedings by virtue of this Schedule are civil proceedings and may be instituted in a court of summary jurisdiction for the petty sessions district in which the property to which the proceedings relate was seized.
13(1)Either party may appeal against the decision of that court to a county court.
(2)This paragraph does not affect any right to require the statement of a case for the opinion of the Court of Appeal.
14Where an appeal has been made (whether by case stated or otherwise) against the decision of the court of summary jurisdiction in proceedings by virtue of this Schedule in relation to property, the property is to be left in the custody of a constable pending the final determination of the matter.
Effect of forfeiture
15Where property is treated or condemned as forfeited under this Schedule the forfeiture is to be treated as having taken effect as from the time of the seizure.
Disposal of property which is not returned
16(1)This paragraph applies where any property is required to be returned to a person under this Schedule.
(2)If—
(a)the property is (without having been returned) still in the custody of the relevant officer after the end of the period of 12 months beginning with the day on which the requirement to return it arose, and
(b)it is not practicable to dispose of it by returning it immediately to the person to whom it is required to be returned,
the relevant officer may dispose of it in any manner he thinks fit.
17(1)This paragraph applies where any property would be required to be returned to a person under this Schedule but for a failure to satisfy a condition imposed by virtue of paragraph 11(2) (return of property conditional on payment of costs within specified period).
(2)The relevant officer may dispose of the property in any manner he thinks fit.
Provisions as to proof
18In proceedings under this Schedule, the fact, form and manner of the seizure are to be taken, without further evidence and unless the contrary is shown, to have been as set forth in the process.
19In proceedings, the condemnation by a court of property as forfeited under this Schedule may be proved by the production of either—
(a)the order of condemnation, or
(b)a certified copy of the order purporting to be signed by an officer of the court by which the order was made or granted.
Saving for owner’s rights
20Neither the imposition of a requirement by virtue of this Schedule to return property to a person nor the return of it to a person in accordance with such a requirement affects—
(a)the rights in relation to that property, or any part of it, of any other person, or
(b)the right of any other person to enforce his rights against the person to whom it is returned.
Interpretation
21In this Schedule—
“the court” is to be construed in accordance with paragraph 12;
“forfeitable property” is to be construed in accordance with paragraph 1(2);
“premises” has the same meaning as in the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I.1989/1341 (N.I.12)) (see Article 25 of that Order); and
“the relevant officer” is to be construed in accordance with paragraph 3.’.—[Hazel Blears.]

Brought up, read the First and Second time, and added to the Bill.

Clause 40 - Orders and regulations

Hazel Blears: I beg to move amendment No. 92, in clause 40, page 33, line 31, after ‘instrument’ insert
‘containing an order or regulations’.
The amendment is a minor, drafting amendment that seeks to add clarity to the clause and puts beyond doubt that the statutory instrument to which subsection (4) refers contains orders or regulations.

Amendment agreed to.

Clause 40, as amended, ordered to stand part of the Bill.

Clause 41 ordered to stand part of the Bill.

Clause 42 - Power to make consequential and transitional provision etc

Hazel Blears: I beg to move amendment No. 93, in clause 42, page 34, line 35, at end insert
‘or any Act of the Scottish Parliament’.
The amendment is a minor technical amendment to ensure that Scottish Ministers have appropriate powers to make orders, and to make any necessary consequential and transitional provisions to give full effect to the Bill.

Amendment agreed to.

Clause 42, as amended, ordered to stand part of the Bill.

Clause 43 ordered to stand part of the Bill.

Schedule 13 - Minor and consequential amendments

Hazel Blears: I beg to move amendment No. 94, in schedule 13, page 123, line 25, at end insert—
‘Superannuation Act 1972 (c. 11)
(1)In Schedule 1 to the Superannuation Act 1972 (employments etc to which section 1 can apply), at the appropriate place in the list of “Offices” there is inserted—
“The office of inspector or assistant inspector of constabulary, where held by a person to whom paragraphs (a) and (b) of section 11(7) of the Police Pensions Act 1976 apply (inspectors etc not eligible for police pensions).”
(2)The amendment made by sub-paragraph (1) shall be deemed always to have had effect.
Police Pensions Act 1976 (c. 35)
(1)In section 11 of the Police Pensions Act 1976 (interpretation), after subsection (6) there is inserted—
“(7)References in this Act to an inspector or assistant inspector of constabulary, and to service as such, do not have effect in relation to cases in which the person in question—
(a)was appointed on or after 1st January 1999, and
(b)did not serve as a member of a police force at any time before his appointment took effect.”
(2)The amendment made by sub-paragraph (1) shall be deemed always to have had effect.’.
This is again a technical amendment to regularise the pension status of members of Her Majesty’s inspectorate of constabulary who are from non-police backgrounds. It will confirm them as members of the principal civil service pension scheme. There are now a number of members of the inspectorate who are from non-police backgrounds. That adds to the variety and diversity of inspectors and brings new skills and analysis to the important work of our professional experts in that sector. We want to make sure that their pension provision is safeguarded.

Amendment agreed to.

Hazel Blears: I beg to move amendment No. 149, in schedule 13, page 127, line 34, at end insert—
‘In this subsection “act” includes a series of acts.’”.
The amendment takes us back to the computer misuse provisions. It makes it clear that acts of attack on computers will include a series of acts. There has been some legal difficulty about the interpretation. For example, if somebody consents to receive one e-mail, that is one matter, but to be bombarded by a series of hundreds of thousands of similar e-mails can dramatically disrupt the operation of a computer. There was a recent case known as the Wimbledon youth case in which an abuser repeatedly sent an e-mail message to a particular address at a specific site—  it has been called a case of mail bombing. People were inundated with the e-mails. The amendment makes it clear that a series of acts as well as a single act can be included in the offence. That is a helpful clarification of the legal position.

Amendment agreed to.

Amendments made: No. 95, in schedule 13, page 128, line 31, leave out ‘section 21A’ and insert—
‘section (Local authority scrutiny of crime and disorder matters) of the Police and Justice Act 2006 (local authority scrutiny of crime and disorder matters)’.
No. 96, in schedule 13, page 128, line 32, leave out from ‘after’ to end and insert—
‘“Schedule 1” there is inserted “and to section (Guidance and regulations regarding crime and disorder matters)(6) of the Police and Justice Act 2006”’.—[Hazel Blears.]

Schedule 13, as amended, agreed to.

Schedule 14 - Repeals

Amendments made: No. 3, in schedule 14, page 136, line 3, after ‘paragraphs’ insert ‘77(5),’.
No. 97, in schedule 14, page 139, line 8, at end insert—
  ‘Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26))In Schedule 6, paragraph 144.’.  No. 98, in schedule 14, page 139, line 18, at end insert—   ‘Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988 (S.I.1988/1847 (N.I.17))In Schedule 2, paragraph 1(2).’.  No. 99, in schedule 14, page 139, line 19, leave out ‘paragraph 37(4)’ and insert ‘paragraphs 37(4) and 38(3) and (4)’.
No. 98, in schedule 14, page 139, line 18, at end insert—
No. 99, in schedule 14, page 139, line 19, leave out ‘paragraph 37(4)’ and insert
No. 100, in schedule 14, page 139, line 30, after ‘paragraph 10(2)(b)’ insert ‘and (c)’.
No. 101, in schedule 14, page 139, line 31, at end insert—
  ‘Justice (Northern Ireland) Act 2002 (c.26)In Schedule 4, paragraph 3(2)(a).’.  —[Hazel Blears.]  Schedule 14, as amended, agreed to.

Schedule 14, as amended, agreed to.

Clause 44 - Commencement

No. 103, in clause 44, page 36, leave out lines 4 and 5 and insert—
‘(a)sections (Local authority scrutiny of crime and disorder matters) and (Guidance and regulations regarding crime and disorder matters) and Schedule (Further provision about crime and disorder committees of certain local authorities);
(b)paragraph 27 of Schedule 13 (and section 43 so far as relating to that paragraph);’.
No. 104, in clause 44, page 36, line 16, at end insert—
‘(7A)The following provisions—
(a)so far as relating to the granting of injunctions on the application of a relevant Welsh landlord—
(i)section 19,
(ii)paragraph 24 of Schedule 13,
(iii)in Part 3 of Schedule 14, the repeal of section 13(4)(b) of the Anti-social Behaviour Act 2003 (c.38), and
(iv)section 43 so far as relating to that paragraph and that repeal,
(b)so far as relating to any tenancy where the landlord is a relevant Welsh landlord—
(i)paragraphs 7, 8 and 22 of Schedule 13, and
(ii)section 43 so far as relating to those paragraphs, and
(c)so far as relating to a relevant Welsh landlord—
(i)paragraph 25 of Schedule 13, and
(ii)section 43 so far as relating to that paragraph,
come into force in accordance with provision made by order by the National Assembly for Wales.
(7B)For the purposes of subsection (7A), each of the following is a “relevant Welsh landlord”
(a)a Welsh county council or county borough council;
(b)a registered social landlord on the register maintained by the National Assembly for Wales;
(c)a housing action trust for an area in Wales.’.—[Hazel Blears.]

Clause 44, as amended, ordered to stand part of the Bill.

Clause 45 - Extent

Amendments made: No. 105, in clause 45, page 36, line 22, leave out first ‘and’ and insert ‘to’.
No. 106, in clause 45, page 36, line 30, at end insert—
‘()Section (Forfeiture of indecent photographs of children: Northern Ireland) and Schedule (Schedule to be inserted into the Protection of Children (Northern Ireland) Order 1978) extend to Northern Ireland only.’.—[Hazel Blears.]

Clause 45, as amended, ordered to stand part of the Bill.

Clause 46 ordered to stand part of the Bill.

Title

Amendment made: No. 160, in title, line 6, after ‘Custody;’ insert—
‘to amend Part 12 of the Criminal Justice Act 2003;’.—[Hazel Blears.]

Question proposed, That the Chairman do report the Bill, as amended, to the House.

Hazel Blears: I thank all members of the Committee for the generally very good-tempered proceedings that we have enjoyed today and in our previous sittings. I particularly thank you, Mr. Pope, and Mr. Conway for the excellent way in which you have presided over our proceedings. We have all benefited from your clear direction and your assistance in ensuring that we have made expeditious progress. We had one or two moments when there were unusual declarations of interest that were challenging for all of us, and we are grateful for your guidance.
I also thank all of the officials involved with the Bill, the Clerks to the Committee and everybody who has assisted us in our considerations. I also genuinely thank the Opposition spokesmen from both parties. We have managed to make good progress and we have agreed on the vast majority of the Bill’s provisions. There are one or two points that remain between us, and I am sure that we will have a chance to discuss them further on Report.
I also thank all my hon. Friends in the Committee for their forbearance, their constant and regular attendance and their rapt attention, which I have felt on my back throughout. As ever, I am grateful for their knowledge and insight into the issues with which we have dealt.
I particularly thank our Whip and the Opposition Whip, who have ensured that we have made extremely good progress and been able to finish a little before our programmed time. That is always the mark of a good and efficient Committee.

Nick Herbert: I add my thanks to you, Mr. Pope, and to Mr. Conway for chairing the proceedings, to the Clerks for their help in tabling our amendments and to the Hansard writers, to whom I have given particular grief in having to supply various quotations to the Doorkeepers. I understand that it is traditional also to thank the police. That would seem appropriate, given the nature of the Bill.
It has been a great pleasure and a great experience for me to be on the Opposition Front Bench. It has been a particular pleasure to see the Minister in action—in full flight. I do not know whether she saw the report by the Daily Mail’s parliamentary correspondent, who was fairly unkind to us both, but his description of her as one of the Government’s springiest welterweights was surely not that unkind. My hon. Friends have observed in Committee that she is tipped for higher office; we can see why and wish her all the best in the long-overdue reshuffle. We hope that she will not have to stand by the phone too anxiously in the Easter recess.
We have learned many new things during our deliberations. We have learned about penetration testers—perhaps we learned a little too much about them. We have learned about “V for Vendetta” and the murky habits of my hon. Friend the Member for The Wrekin. We have learned about the new county of Brokenshire—given the Government’s intentions with regard to our counties and our county police forces, it is entirely appropriate that there should be a county of Brokenshire, as that is what is going to happen—and we have also learned about the Government’s extraordinary new doctrine of localism, under which any measure, however centralising, is described as a means to empower individuals and communities.
We have discussed measures that are decentralising in one respect that I can identify: the community call for action, as discussed under clause 14. However, the Minister confirmed that they were powers of last resort, not a mainstream way of doing business. By comparison, we have seen new powers for the Home Secretary to shape and intervene in police authorities,  the standardisation of powers of community support officers and the creation of the national policing improvement agency. There are also other measures about which we have concerns—the extension of summary justice and the combined inspectorate and its implications for the independence of prison inspections in particular. We tabled amendments to try to improve the Bill to make it clear that the Home Secretary should intervene in police authorities only as a last resort and to give police constables more discretion over powers for community support officers. The amendments were either clarifications or intended to give more discretion to chief constables. I regret that the Minister did not accept one of them and, to be frank, has been pretty dismissive of our concerns.
I remind the Committee that last Friday—

Greg Pope: Order. It is not the point of this part of the proceedings to rehearse the debates already held on Second Reading and in Committee. There will be plenty of opportunity to do that on Report and Third Reading.

Nick Herbert: Thank you, Mr. Pope. I read lots of concluding speeches from other Committees, and I understood it was usual for the Opposition to remind the Committee of those aspects of the Bill about which they were concerned and to which they would return. We will need to return to various matters, because a great deal of concern has been expressed outside the House, not least by the professional bodies involved—police officers and the Association of Chief Police Officers—about the extent of the provisions and the way they centralise power and reduce the discretion of the various bodies concerned. I look forward to that debate, but in the meantime I wish every Committee member a very good Easter.

Lynne Featherstone: I put on the record my thanks to you, Mr. Pope, and to Mr. Conway. You have chaired our proceedings very smoothly, despite the ups and downs of our disagreements. I also thank the Clerks, Hansard, all Committee members, the Minister and the official Opposition spokesperson for their contributions to our informative debates. I have learned much about computer hacking, as has the Minister—it could be a case of the blind leading the blind, but I am pleased that in that one instance no stony ground was in evidence. I wish the Minister well on her promotion, whenever that is. [Interruption.] Well, we hear rumours. I have also learned a lot about the exact powers of CPSOs. I think that the Minister gave a masterclass in them.
I thank everyone on the Committee for making this a learning experience for me.

Greg Pope: I am grateful for hon. Members’ kind comments and for the Committee’s tolerance and good humour on my first outing as Chairman of a Standing Committee. I am especially grateful to Mr. Pound and Mr. Fabricant for bogus points of order.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at eight minutes to Six o’clock.